Delaware Coalition for Open Government Inc. v. Strine et al

Filing 1

COMPLAINT filed against Delaware Court of Chancery, Sam Glasscock, III, J. Travis Laster, John W. Noble, Donald F. Parsons, Jr, State Of Delaware, Leo E. Strine, Jr - Magistrate Consent Notice to Pltf. (Filing fee $ 350, receipt number 0311-964406) - filed by Delaware Coalition for Open Government Inc.. (Attachments: # 1 Civil Cover Sheet)(nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DELAWAWARE COALITION FOR
OPEN GOVERNMENT, INC.,
Plaintiff(s),
v.
THE HON. LEO E. STRINE, JR.,
THE HON. JOHN W. NOBLE,
THE HON. DONALD F. PARSONS, JR.,
THE HON. J. TRAVIS LASTER,
THE HON. SAM GLASSCOCK, III,
THE DELAWARE COURT OF CHANCERY,
and the STATE OF DELAWARE.
Defendants.

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C.A. No.

COMPLAINT
PARTIES
1.

Delaware Coalition for Open Government, Inc. ("DelCOG") is a non-profit

corporation duly organized and existing under the laws of the State of Delaware. DelCOG is
dedicated to promoting and defending the people's right to transparency and accountability in
government.
2.

The Hon. Leo E. Strine, Jr. is the Chancellor of the Court of Chancery of the State

of Delaware, whose duties including administering the statute challenged in this action.
3.

The Hon. John W. Noble is a Vice Chancellor of the Court of Chancery of the

State of Delaware, whose duties including administering the statute challenged in this action.
4.

The Hon. Donald F. Parsons, Jr. is a Vice Chancellor of the Court of Chancery of

the State of Delaware, whose duties including administering the statute challenged in this action.

5.

The Hon. J. Travis Laster is a Vice Chancellor of the Court of Chancery of the

State of Delaware, whose duties including administering the statute challenged in this action.
6.

The Hon. Sam Glasscock, III, is a Vice Chancellor of the Court of Chancery of

the State of Delaware, whose duties including administering the statute challenged in this action.
7.

The Delaware Court of Chancery is a judicial institution of the State of Delaware

existing pursuant to Article IV of the Constitution of the State of Delaware and Chapter 3 of
Title 10 of the Delaware Code.
8.

The State of Delaware is a State of the United States of America.
JURISDICTION AND VENUE

9.

This action arises under the First and Fourteenth Amendments to the United

States Constitution, and under the Civil Rights Act of 1871, 42 U.S.C. sections 1983 and 1988.
10.

This Court has jurisdiction of this cause under 28 U.S.C. sections 1331 and 1343.

11.

As all parties hereto reside or exist in Delaware, venue is appropriate in this Court

pursuant to 29 U.S.C. §1391(b) and (e).
BACKGROUND FACTS
12.

In or around April, 2009, the State of Delaware adopted 10 Del. C. §349, which

states that:
(a) The Court of Chancery shall have the power to arbitrate
business disputes when the parties request a member of the Court
of Chancery, or such other person as may be authorized under rules
of the Court, to arbitrate a dispute. For a dispute to be eligible for
arbitration under this section, the eligibility criteria set forth in §
347(a) and (b) of this title must be satisfied, except that the parties
must have consented to arbitration rather than mediation.
(b) Arbitration proceedings shall be considered confidential and
not of public record until such time, if any, as the proceedings are
the subject of an appeal. In the case of an appeal, the record shall
be filed by the parties with the Supreme Court in accordance with

its rules, and to the extent applicable, the rules of the Court of
Chancery.
(c) Any application to vacate, stay, or enforce an order of the
Court of Chancery issued in an arbitration proceeding under this
section shall be filed with the Supreme Court of this State, which
shall exercise its authority in conformity with the Federal
Arbitration Act, and such general principles of law and equity as
are not inconsistent with that Act.
13.

In furtherance of 10 Del. C. §349, the defendants adopted Chancery Court Rules

96, 97 and 98 on or about January 5, 2010. Pursuant to Rule 96(d)(1), arbitration is defined as
“the voluntary submission of a dispute to an Arbitrator for final and binding determination….”
Pursuant to Rule 96(d)(2), an “Arbitrator” is defined as “a judge or master sitting permanently in
the Court.” Pursuant to Rule 96(d), an “Arbitration hearing” is “a proceeding, which may take
place over a number of days, pursuant to which the petitioner presents evidence to support its
claim and the respondent presents evidence to support its defense, and witnesses for each party
shall submit to questions from the Arbitrator and the adverse party, subject to the discretion of
the Arbitrator to vary this procedure so long as the parties are treated equally and each party has
the right to be heard and is given a fair opportunity to present its case.”
14.

Pursuant to Chancery Court Rule 97(a)(4), “[t]he Register in Chancery will not

include the petition [initiating the Arbitration] as part of the public docketing system. The
petition and any supporting documents are considered confidential and not public record until
such time, if any, as the proceedings are the subject of an appeal.”
15.

Pursuant to Chancery Court Rule 98(b), “Arbitration hearings are private

proceedings such that only parties and their representatives may attend, unless all parties agree
otherwise…Any communication made in or in connection with the Arbitration that relates to any

controversy being arbitrated, whether made to the Arbitrator or a party, or to any person if made
at an arbitration hearing, is confidential.
16.

In late September, 2011, Advanced Analogic Technologies, Inc. disclosed

publicly that it had initiated proceedings under the above-referenced statute and rules against
Skyworks Solutions, Inc. Such action amounts to a secret judicial proceeding.
COUNT I
(Violation of 42 U.S.C. §1983)
17.

The allegations of numbered paragraphs 1-16 are incorporated herein as if fully

restated herein.
18.

Pursuant to the First Amendment to the Constitution of the United States (ratified

by Delaware on December 7, 1787), the public has a presumptive right of access to judicial
proceedings and records, civil and criminal. This right of access is considered to be a right of
contemporaneous access, meaning that the public has the right to attend judicial proceedings (as
opposed to merely reviewing a transcript at a later time) and to review documents as they are
filed with the Court or introduced into evidence.
19.

10 Del. C. §349 and Chancery Court Rules 96, 97 and 98 deny plaintiffs, and the

general public, their right of access to judicial proceedings and records. Although the statute and
rules call the procedure “arbitration,” it is really litigation under another name.

Although

procedure may vary slightly, the parties still examine witnesses before and present evidence to
the Arbitrator (a sitting judge), who makes findings of fact, interprets the applicable law and
applies the law to the facts, and then awards relief which may be enforced as any other court
judgment. The only difference is that now these procedures and rulings occur behind closed
doors instead of in open court.

20.

The defendants’ actions, under color of State law, constitute an unlawful

deprivation of the public's right of access to trials in violation of the First Amendment as applied
to the states by the Fourteenth Amendment to the United States Constitution.
WHEREFORE, for the foregoing reasons, plaintiffs respectfully request that the Court
enter judgment in their favor and against defendants:
a.

Declaring that 10 Del. C. §349 and Chancery Court Rules 96, 97 and 98 are

unconstitutional, in violation of plaintiff's and the public's rights under the First Amendment;
b.

Permanently enjoining defendants from conducting any non-public proceedings

under 10 Del. C. §349 and Chancery Court Rules 96, 97 and 98;
c.

Ordering the Court of Chancery to unseal all sealed documents filed pursuant to

10 Del. C. §349 and Chancery Court Rules 96, 97 and 98;
d.

Awarding plaintiffs’ their costs, including reasonable attorneys’ fees pursuant to

42 U.S.C. §1988; and
e.

Granting such other and further relief as the Court deems fair and just.

/s/ David L. Finger
David L. Finger (DE Bar ID #2556)
Finger & Slanina, LLC
One Commerce Center
1201 North Orange Street, 7th floor
Wilmington, Delaware 19801-1186
[phone]
Attorney for plaintiff Delaware Coalition for Open
Government, Inc.
Dated: October 25, 2011